Mukesh Kumar v. State of Haryana & Ors.

Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate for respondents No.2 to 4. Mr. M.L. Saggar, Sr. Advocate with Mr. Sunny Saggar, Advocate for respondent No.3. Rakesh Kumar Garg, J.(Oral) The petitioner has approached this Court by filing the instant writ petition seeking the following relief: “Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing the impugned transfer order dated 17.1.2012 (Annexure P-13), being illegal, arbitrary and passed as a measure of punishment against the petitioner without issuance of any show cause notice or conducting CWP No.1431 of 2012 2 any inquiry or complying with the principles of natural justice. Further to issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to initiate and take appropriate action against respondent No.3 in the shape of disciplinary proceedings and to register a case FIR against him on the basis of the complaint dated 27.11.2011 (Annexure P-1) filed by the petitioner; Further to issue a writ of mandamus or any other appropriate writ, order or direction directing respondent No.3 to pay compensation to the tune of Rs.5,00,000/- lakhs to the petitioner in relation to the violation his fundamental rights under Article 21 of the Constitution of India.” In the writ petition, the petitioner has cited various reasons to show the malafides of the respondents. It is his specific case that he has filed a criminal complaint to the Station House Officer, Police Station Civil Lines, Sector 14, Gurgaon reporting his grievances. However, the writ petition has been contested by the respondents by filing separate replies on behalf of respondents No.1 to 3 and respondent No.5. In the reply filed on behalf of respondent No.5, the following preliminary submissions have been made: “That the present petition is not maintainable CWP No.1431 of 2012 3 against the respondent No.5. It is submitted that from the complaint filed by the petitioner, no cognizable offence is made out, hence the same was filed. After the receipt of the complaint dated

27.11.2011 from the petitioner the matter was enquired from the PA of Administrator of HUDA, Chief Accounts Officer, HUDA and Gun Man of Administrator, HUDA by the investigating officer, Police Post, Sec-14, Gurgaon. They told that no bearing was caused to the petitioner rather he was rebuked by the Administrator, HUDA for the allegations of corruption against him. Moreover, the petitioner did not get medico legally examined himself. Thus, no action was warranted on the complaint of the petitioner and the same was filed. Therefore, the present petition is liable to be dismissed qua the respondent No.5.” Sh. Narender Singh, HPS, Assistant Commissioner of Police, City, Gurgaon has further filed an affidavit dated 16.5.2012 which reads thus: “1. That earlier the reply dated 16.4.2012 was filed in this Hon'ble Court by the answering respondent in which it was stated that the matter was enquired by the PA to Administrator, HUDA, Chief Accounts Officer, HUDA and Gunman of Administrator, HUDA by investigating officer, Police Post, Sec-14, Gurgaon. They told that no CWP No.1431 of 2012 4 beating was caused to the petitioner rather he was rebuked by the Administrator, HUDA for the allegations of corruption against him.

2. That now the statement of Sh. Praveen Kumar, IAS, Administrator, HUDA was recorded by SI Prem Chand, In-Charge, Police Post, Sec- 14, Gurgaon on 30.4.2012 (copy annexed as R-1) in which he has stated that on 27.11.2011 i.e. Sunday he was present in his office situated at Sec-14, Gurgaon. The complaint were being received by him against Mukesh Kumar, Peon for the last so many days that he takes money and possess four mobile cell with him. He called Mukesh Kumar, Peon in his room and make him understand as to may he does not mend himself as there are so many complaint against him for taking money. If he is confined to jail his children, family and parents will feel it. Thereafter he slapped Mukesh Kumar, Peon in provocation.” Even the statement of respondent No.3 has been attached along with the said reply wherein he has admitted certain facts as stated in the aforesaid reply. At this stage, the order dated 6.11.2012 be also noticed which reads thus: “At the outset, learned counsel appearing on behalf of the respondents No.2 and 4 has CWP No.1431 of 2012 5 stated before this Court that the order of transfer of the petitioner has been withdrawn. However, learned counsel appearing on behalf of the petitioner states that the petitioner still wants to continue with other remedies available to him, including perusal of the registration of the FIR on the basis of complaint dated 27.11.2011 and seeking damages etc. List on 5.12.2012 for further consideration. Let the petitioner be present in Court on the date fixed.” Thereafter, this Court had called the Secretary, Department of Haryana Urban Development, Chandigarh on 13.12.2012. On that date, he had assured this Court that he will make all efforts to defuse the situation. An affidavit of Sh. S.S. Dhillon, Principal Secretary to Govt. of Haryana, Town and Country Planning Department, New Mini Secretariat, Sector-17, Chandigarh, has been filed in Court. The same is taken on record. Paras No.5 to 7 of the aforesaid affidavit read thus: “5. After hearing the petitioner, Administrator, HUDA Gurgaon was also heard on 15.12.2012. He stated that the petitioner was called in his chamber on 27.11.2011 in order to advice him to refrain from indulging in corrupt practices. He further stated that he had been receiving reports regarding corruption in the Estate Office, HUDA, CWP No.1431 of 2012 6 Gurgaon and the active role of the petitioner in promoting such practices in connivance with the property dealers. He further stated that the petitioner and his family would have suffered more had he been caught red handed while indulging in such corrupt practices and it was thought fit by him to reprimand the petitioner for his conduct. He also stated that on account of this provocation, he slapped the petitioner only once. When questioned that is it in appropriate behaviour on his part for having slapped, Administrator, Gurgaon reverted back to his arguments of corrupt practices being adopted by the petitioner and in the event of his being caught, he and his family would have suffered more.

6. Shri Mukesh Kumar, Peon(Petitioner) appeared again on 19.12.2012 and stated that his relatives and community members have suggested him not to withdraw the case.

7. The action of Shri Parveen Kumar, Administrator, HUDA Gurgaon for correcting the behaviour of the petitioner in the fashion aforestated is certainly improper and the matter is proposed to be referred to the competent authority for initiating disciplinary proceedings.” CWP No.1431 of 2012 7 Thus, keeping in view the facts and circumstances of the case, as narrated above, this petition is disposed of with a direction to the respondents to take action on the complaint of the petitioner in accordance with law. December 21, 2012 (RAKESH KUMAR GARG) JUDGE